[Foundation-l] Fwd: [WL-News] Wikimedia Foundation in danger of losing immunity under the Communications Decency Act
Mike Godwin
mgodwin at wikimedia.org
Sun May 18 18:38:13 UTC 2008
Anthony writes:
>
> On Sun, May 18, 2008 at 10:10 AM, Mike Godwin
> <mgodwin at wikimedia.org> wrote:
>> My view continues to be that the Foundation should almost never
>> engage
>> in direct editing or removal of project content, except (as in DMCA
>> takedown notices) when we are required to do so by law.
>>
> FWIW, I think that's an absolutely terrible decision that is the cause
> of a great deal of completely unnecessary ill-will toward the
> Foundation and its projects.
I think there will be unnecessary ill will towards the Foundation and
its projects no matter what we do or do not do. That is the nature of
the world or at least of Foundation-l. But I think there would be more
unnecessary ill will towards the Foundation and its projects if the
Foundation used a heavier hand in removing content, precisely because
it would give rise to the expectation that the Foundation is
positioning itself in a fundamentally editorial role. Look how much
ill will is generated simply because I suggested to members of the
community that there are legal problems associated with a couple of
Wikinews articles! Thomas Dalton, for example, thanks that's the
equivalent of an order. Me, I think it's better to explain what's
going on and ask the community to do the right thing in the hope that
they will take my advice.
If I did what you suggest, and simply removed material from Wikinews
that I thought would generate a legal problem, there would still be
ill-will ("Censorship!"), and I'd still be called upon to justify the
removal, and there's still be ginned-up controversy. In addition,
potential litigants would perceive the Foundation as playing a heavier
editorial role than it does, and would be more likely to sue us in the
hope of either getting the statutory immunity overturned or of getting
it construed in a way that diminishes its protection. I believe it
helps to think through what the social consequences of the direct
action.
> The only semi-coherent explanation for
> it seems to be that it is required for protection under Section 230 of
> the CDA, but as you and I both know this is absolutely not correct.
> In fact, everything I have read on the matter suggests that the whole
> point of Section 230 of the CDA was to allow service providers to
> engage in direct removal of project content without becoming liable
> for that which it failed to remove.
That's a correct reading of the reasoning behind Sec. 230. And if
you're AOL or MSN or abc.com or Google, you can afford to pay for a
dozen summary judgments in your favor every week, on Sec. 230 grounds.
That's not us, however. Better than defending Sec. 230 every time it
comes up is to lower the public's expectation that the Foundation is
going to step in and fix everything for a would-be plaintiff. That
way, we spend less donated money on cases.
Now, you may be wealthy, Anthony, and so it may seem sensible to you
to invite lawsuits that you can then get dismissed on Sec. 230 grounds
-- a kind of very expensive version of whack-a-mole.
But if the purpose of our engagement with the community of editors is
to empower them to add to the availability of the sum of human
knowledge, then it makes sense to empower the community to fix as many
problems with the content they provide as possible, rather than take
that responsibility away from them and place it in, say, me or Sue or
Cary. So I prefer to advise community members rather than give them
orders (as if they felt any obligation to follow my orders, which
hardly anyone does), and I believe it's wiser to reserve my own
ability to remove content even though Sec. 230 allows it. That may
seem like an "absolutely terrible decision" to you (not merely
terrible, but "absolutely" so!), but perhaps you're a better attorney
than I am.
I should add that there is a complicating factor with regard to Sec.
230, and that's that while simple removal is protected, it's unclear
whether every court would agree that more subtle substantive editing
is protected -- by engaging in the development of the content of an
article, the Foundation and its agents or employees may
unintentionally negate Sec. 230 immunity, depending on the scope and
substance of the editing. That's a legal question that I'm studiously
avoiding investing the Foundation's donated funds in finding an answer
to. I'd rather see a richer defendant sort that one out for us.
--Mike
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